Judge Birch’s bold upbraiding of the President and the Congress over the unconstitutional “Terri’s Law”, which attempted to tell the courts what sort of decision rules they should apply in a case, has attracted some interesting responses. Stephen Henderson’s article on the opinion in the Knight-Ridder newspapers includes some choice quotes. First, a law prof:

“This is a judge who, through a political or policy lens, falls pretty squarely in the Scalia/Thomas camp,” said law professor and constitutional expert David Garrow, referring to the two most conservative Supreme Court justices. “I think it’s a sad commentary that there wasn’t a voice like his present in the Congress, because he’s saying what a Republican constitutional conservative should be saying.”

This makes basically the same point I made yesterday. But here’s the more fascinating response, from American Center for Law and Justice director Jay Sekulow:

Jay Sekulow, the chief legal counsel for the conservative American Center for Law and Justice, said Birch got it wrong, while two other judges – including one appointed by Bill Clinton – were right to say they’d accept the Schiavo case.

“I think this whole case is redefining ideological positions,” said Sekulow, whose organization has been consulting with lawyers for Schiavo’s parents. “I would think an originalist view of the Constitution would come out differently than what Birch says.” Originalists try to adhere to the precise language and intent of the Constitution.

I would love to hear Sekulow attempt to make an originalist argument for that law. If you can find a coherent originalist rationale for the Congress passing a law specifically to overturn a state court decision on a matter that had always been under state control, I’d sure love to hear it. What is really going on here is quite obvious. There is a conflict among these conservatives between their religious or moral views and what they claim to be their judicial theory, and the judicial theory is being jettisoned. They are now doing precisely what they say they oppose, determining their preferred judicial reasoning by the outcome they wish to secure. And this falls very well into the pattern that I have long been pointing out on this blog.

I have repeatedly pointed out that they don’t really mean what they say about “activist judges”, and I’ve offered many examples of where their actions contradict their words as evidence for my argument. When a court rules against a law they support, they scream about “unelected judges” overruling the “will of the people”. And when it’s a state law that they support and a Federal judge that intervenes, they darkly intone about the death of federalism. But where the “will of the people” conflicts with the outcome they want, as in the California stem cell initiative (passed by public referendum) or the Oregon assisted suicide law (also passed by public referendum, twice), they run straight into court to get a judge to overturn the law. And when state courts or legislatures do things they don’t like, as in the Massachusetts gay marriage ruling, they run straight to the Federal courts to get those laws or rulings reversed (remember Matthew Staver’s hilarious argument that the Goodridge decision violated the constitutional guarantee of a “republican form of government”?). The Terri Schiavo situation is just the latest example of this tension between rhetoric and actions, and the Henderson article nails it perfectly:

Birch’s criticisms highlight the legal conundrum that surrounds the Schiavo case and point to the difficulty it continues to present for some Republicans. Congressional leaders may have believed that they were playing to the party’s socially conservative wing by taking extraordinary steps to have the federal government intervene. But traditional conservatives have decried their abandonment of the party’s adherence to limited government, states’ rights and separation of powers.

Additionally, in order for Schiavo’s parents to win in federal court, judges would have to embrace a doctrine of constitutional due process that conservatives have decried. Such “substantive” due process, which Justice Antonin Scalia sharply criticized in a recent speech as part of the threat that will “destroy the Constitution.”

“The fact that their best argument would be based on legal thinking that produced cases such as Roe v. Wade and Lawrence v. Texas ought to give them a clue about what they’re asking for,” said Garrow, referring to cases that legalized abortion and struck down sodomy laws. Garrow said he supported those opinions, but conservatives generally don’t because they embrace an expansive view of constitutional rights.

I should point out two things. First, I am an advocate of the concept of substantive due process. But I don’t see any legitimate basis for a violation of substantive due process in this case. Second, this hypocrisy is not true of all conservatives, of course, and Judge Birch is a perfect example of someone who applies his jurisprudence consistently regardless of outcome. But as the Henderson article points out, such consistency is much more common among judges than among politicians:

Michael Dorf, a Columbia University law professor and constitutional expert, said he’s not surprised that Republicans made an apparent exception to limited government in the Schiavo case.

“Republicans are not categorically against opening federal courts where they think that doing so would produce politically conservative results,” Dorf said. “It’s easier for a judge to stick by abstract principles than for a politician. The judge only has to answer to the limited audience for judicial opinions. The politician has to answer to voters, who don’t generally draw those fine distinctions.”

In the political realm, he said, “repeated instances of hypocrisy can become consistency.”

Of course, in this particular case, they appear to have miscalculated the political impact as well.